State of New South Wales v WXN1 (Final)

[2023] NSWSC 1191

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v WXN1 (Final) [2023] NSWSC 1191

Hearing dates:

5 October 2023

Date of orders:

09 October 2023

Decision date:

09 October 2023

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

1. Pursuant to ss. 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (“the Act”), the Defendant is subject to an extended supervision order (“the extended supervision order”) for a period of three (3) years from the date of the order.

2. Pursuant to s. 11 of the Act, the Defendant is directed, for the period of the extended supervision order, to comply with the conditions set out in Schedule to this Order.

Catchwords:

HIGH RISK OFFENDERS – final hearing – extended supervision order – interim supervision order previously made – where three-year extended supervision order agreed – dispute about single condition resolved prior to hearing – whether statutory requirements satisfied and Court can have required satisfaction that defendant continues to pose an unacceptable risk of committing another serious offence if not kept under the proposed supervision – extended supervision order imposed

Legislation Cited:

Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW) ss 5, 5B, 5D, 5I, 6, 7, 9, 20(1)

Cases Cited:

Cornwall v Attorney General for New South Wales [2007] NSWCA 374

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

State of New South Wales v NW [2019] NSWSC 415

State of New South Wales v NW (No 3) (Preliminary) [2019] NSWSC 1510

State of New South Wales v WXN1 (Preliminary) [2023] NSWSC 883

State of NSW v NW (Preliminary) [2019] NSWSC 999

State of NSW v WXN1 [2020] NSWSC 993

TSL v Secretary to the Department of Justice (2006) 14 VR 109; [2006] VSC 199

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
WXN1 (Defendant)

Representation:

Counsel:
Ms N Evan (Plaintiff)
Mr J Wilcox (Defendant)

Solicitors:
Crown Solicitors (Plaintiff)
Legal Aid Commission (Defendant)

File Number(s):

2023/00157725

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the name of the defendant has been suppressed.

JUDGMENT

1. In May 2023, Yehia J made a pseudonym order as the result of which the defendant must be referred to as WXN1. In July 2023, Adams J made an interim order for his supervision under the Crimes (High Risk Offenders) Act 2006 (NSW) and ordered that he be examined by two experts: State of New South Wales v WXN1 (Preliminary) [2023] NSWSC 883. Further supervision orders were later made by Yehia J by consent, which remain in force. This judgment deals with the State’s application for final orders to which WXN1 also consents, the only issue lying between the parties concerning the terms of one of the proposed conditions having been resolved before the hearing.

2. In evidence before Adams J were two affidavits sworn by Mr McAlary, the solicitor with carriage of the matter at the Crown Solicitor’s Office and various exhibited documents, including a February 2023 Risk Assessment Report prepared by Ms Wright and a March 2023 Risk Management Report prepared by Louise Robinson, as well as an affidavit of WXN1’s solicitor Ms Reynolds.

3. This evidence was also relied on at the final hearing when further evidence was also tendered. That including a 14 September affidavit of Ms Fisher, another solicitor in the employ of the Crown Solicitor, to which was annexed further documents and the reports of the experts, Dr McSwiggan and Dr Furst.

What was not in issue

4. There was no issue that in WXN1’s circumstances the statutory preconditions to the exercise of the Court’s discretion to make the final three-year supervision order sought are satisfied. They include:

1. WXN1’s relevant offending commenced with his conviction of a number of child sexual assaults, the first of which occurred in 2006 when he was aged 15 years, which he disclosed to police in 2009. These offences involved serious sexual assaults on his five younger cousins over a period which concluded when he was 17 and a half years old. They involved acts such as touching a 12 year old on the breast and bottom while she cried and physically resisted; digitally penetrating a 9 year old’s vagina and anus; penile-anal intercourse with an 8 year old male, as well as fellatio on the same victim; forceful penetration of another 7 year old male’s anus, causing pain and bleeding, as well as fellatio on this victim; and penile/anal sexual intercourse, cunnilingus, digital penetration and attempted penile/vaginal intercourse with a 3 year old, the latter two acts rupturing the girl’s hymen and tearing her posterior fourchette, requiring surgical intervention, as well as further counts of penile/anal sexual intercourse and vaginal touching.

2. In 2010, WXN1was sentenced to a term of imprisonment of 9 years and 9 months, with a non-parole period of 5 years and 3 months for these offences, this sentence concluding on 13 November 2018. It was in November 2015 that he was released on parole.

3. WXN1 having been sentenced in 2017 for further child pornography offending committed in 2016, for which he was sentenced to 2 years and 3 months imprisonment, which concluded on 9 May 2019.

4. In May 2018 the Local Court placing WXN1 on a five-year child protection prohibition order under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW).

5. In April 2019 WXN1 being arrested and charged with using a carriage service to access child pornography and two counts of contravening his Child Protection Prohibition Orders between 31 July 2018 and 2 April 2019. It was then alleged that he had loitered around a primary school for 90 minutes and used a mobile phone to access pornography depicting girls aged 13-18 years. The child pornography charge was later withdrawn, but in March 2020 he was sentenced to an aggregate term of 18 months imprisonment with a non-parole period of 13 months for the two counts of contravening his CPPO orders.

6. An application for an extended supervision order being made in October 2019, which was dealt with in State of New South Wales v NW [2019] NSWSC 415; State of NSW v NW (Preliminary) [2019] NSWSC 999, when an interim supervision order was made and in State of New South Wales v NW (No 3) (Preliminary) [2019] NSWSC 1510.

7. Given that WXN1 had been returned to custody for his CPPO offences, the final hearing of the 2018 extended supervision order application was delayed until 30 July 2020 when Garling J made final supervision orders on 30 July 2020, which did not expire until July 2023: State of NSW v WXN1 [2020] NSWSC 993.

8. In May 2020, the District Court calling up WXN1’s s 20(1)(b) recognizance and extending it to 7 February 2021.

5. In May 2023 the State brought these proceedings, seeking a further extended supervision order. Adams J made an interim supervision order for a period of 28 days commencing on 31 July 2023 and expiring on 27 August 2023. Yehia J later made further interim orders extending WXN1’s supervision.

6. Adams J arrived at her conclusions, having been persuaded that the State had met the onus which fell upon it, given:

• the nature, seriousness and extent of WXN1’s offending against very young children over a lengthy period of time;

• the fact that he lacked any stable relationships and thus did not enjoy the pro-social factors associated with such relationships, being estranged from his father, his mother having died, and he having no other family contact, close friends or any intimate partner;

• he still having an ongoing sexual attraction to children, despite many years on antilibidinal medication and continuing to consider sex as a coping mechanism;

• he having an ongoing need for intensive supervision given his identified risk factors of poor self-regulation, boredom, loneliness and social isolation;

• he having made little to no progress in obtaining wider community integration and support, appearing to be at the same stage in this respect as when the first extended supervision order was made;

• he appearing to be vulnerable without continued support;

• he having been assessed as posing a well above average risk of further sexual reoffending;

• while he had not breached his supervision order, he had a history of breaches when subject to parole supervision; and

• he properly acknowledged that the expert evidence suggested that there had been no change to his level of risk, he continuing to express sexual thoughts about children, despite not committing further offences under his extended supervision order.

7. At the final hearing there was also no issue that the orders sought would be made:

1. WXN1 being a supervised offender as defined in s 5I of the Act when the State’s 2023 application was made under s 6, he then being subject to the extended supervision order Garling J had made for his earlier offending, which had been of a sexual nature, as defined in s 5.

2. The State’s application satisfying the requirements of s 6, given the documents it was supported by and the conditions which were then sought. The requirements of s 7 were also satisfied, that resulting in the orders which Adams J had made.

3. This reflected that WXN1's offending fell within the definition of a serious sexual offence, as defined in s 5 of the Act, he having been convicted of a number of child sexual assaults which carried a maximum penalty of 7 years imprisonment.

4. WXN1 was also an offender serving or who had served a sentence of imprisonment for his serious offences either in custody or under supervision in the community, when the application was made, as s 5B required.

5. On the evidence the Court could be satisfied to the required high degree of probability that WXN1 continues to pose an unacceptable risk of committing another serious offence if not kept under supervision under the proposed final order, as s 5B also requires, that being established by the evidence.

6. The application had to be determined by the Court on all the evidence, bearing in mind that the safety of the community must be the paramount consideration: s 9(3).

The statutory requirements are satisfied

8. While there was no issue between the parties about the satisfaction of the statutory requirements and that the three-year supervision order must be made, WXN1 accepting that the experts spoke with one voice about the continuing serious risk which he poses despite having been under ongoing supervision for years, the Court must itself be satisfied about this on the evidence, before the discretion to make the orders sought can be exercised.

9. Having considered the evidence, I am satisfied that the onus which falls on the State has been met, with the result that the orders sought must be made, that being what the safety of the community undoubtedly requires in WXN1’s’s case. It well establishes the serious nature of the various sexual assaults of which he was convicted after his admissions about what he had done to his young victims. It is unnecessary to explain that offending further.

10. The evidence also well established that the defendant continues to pose an unacceptable risk of committing another serious offence if not kept under the proposed supervision. That conclusion is inescapable given the evidence Adams J had to consider, which I will not explain further, when considered together with the evidence led at the final hearing and the matters specified in s 9 of the Act, which must be considered in light of WXN1’s own acceptance that he poses the required unacceptable risk.

11. The matters specified in s 9(3) to be taken into account by the Court on an application such as this are:

(b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination,

(c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment,

(d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence,

(d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,

(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs,

(e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time,

(e2) the likelihood that the offender will comply with the obligations of an extended supervision order,

(f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

(g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004,

(h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,

(h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(i) any other information that is available as to the likelihood that the offender will commit a further serious offence.

12. What the State had to establish in respect of the required high degree of probability of further serious offending is as explained in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. Namely, something 'beyond more probably than not'. The existence of the risk, that is the likelihood of WXN1 committing a further serious offence, must be proved to a higher degree than the normal civil standard of proof, although not to the criminal standard of beyond reasonable doubt. The risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion "likely", as explained in TSL v Secretary to the Department of Justice (2006) 14 VR 109; [2006] VSC 199.

13. I am satisfied that this onus has been met.

14. The Court is not required to determine that the risk of an offender committing a serious offence is more likely than not, in order to determine that there is an unacceptable risk of the person committing such an offence: s 5D.

15. The term "unacceptable risk" must be understood in light of the explanation in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57. This involves an evaluative task undertaken in the context of this statutory scheme, the primary object of which is to "ensure the safety and protection of the community": [55]. That assessment must be undertaken "in the context of making the community secure from harm as opposed to guaranteeing its safety and protection": at [61].

16. Consideration must thus be given to matters such as WXN1’s past conduct, the seriousness of his possible future conduct and the period over which the risk he poses may come to fruition. The assessment must be based on an absence of protective measures and a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community from violent offenders: at [126].

17. The impact of the order on WXN1’s liberty is not relevant to the determination of whether the threshold in s 5B is satisfied. But it is relevant to the exercise of the discretion given by s 9, to determine the application: Lynn at [56]-[-57]. Given the evidence I am satisfied that the discretion must be exercised by making the orders which the parties agreed.

What the further evidence established

18. The further evidence reinforced what was established by the evidence led before Adams J about the unacceptable risk of further serious offending which WXN1 continues to pose. The existence of that risk cannot be doubted, given:

1. Dr McSwiggan’s September 2023 neuropsychological report, she having examined WXN1 in August 2023, when he gave an account of his personal, offending and psychiatric history, as well as his present circumstances. He still continues to take medication which for years have been prescribed for his mood, as well as the antilibidinal medication which he then said he was prepared to continue taking. Dr McSwiggan:

1. tested WXN1’s intellectual ability with an unusual mix of results. She concluding that he operated overall in the average range of intellect, but when tasks requiring sustained attention were removed, in the high average range;

2. noted his history of diagnosed depressive illness and long term treatment for depression, as well as his diagnosis of paraphilia, a disorder of abnormal sexual interest in prepubescent females, made on the basis of his pattern of offending and admissions;

3. explained the opinions of Dr Nielssen in 2017 that WXN1’s underlying sexual interest was unlikely ever to change and that the purpose of his rehabilitation was to set up conditions that helped persuade him to obey the law, including by continuation of antilibidinal medication;

4. explained his history since release under supervision and the earlier risk assessment reports by the psychologist Ms Wright in February 2023 and the assessment of Ms Robinson, of the extended supervision team, in March 2023;

5. noted his continuing acceptance of his offending and the shame he expressed for it;

6. considered that WXN1 still met the criteria for paraphilic disorder and major depression, with his underlying sexual interests unlikely ever to change and his depressive disorder contributing to him seeking maladaptive ways to relieve his psychological distress by using sexual means;

7. noted the years of intensive sex offending courses WXN1 had undergone, as well as their maintenance in the community. She considered he required ongoing treatment and a structured week to help reduce his underlying risk factors of accessing unlawful child pornography and attempting a contact based offence;

8. assessed WXN1 as falling within the second highest risk category of committing a further serious sex offence, with a two year rate of further general offending at that level ranging from 50 to 84%. She thus considered that he required ongoing intensive supervision in the community, given that a substantial portion of persons presenting that level of risk of re-offended over the longer term and that successful rehabilitation involving gradual life changes required periods greater than 10 years;

9. observed that WXN1 is now isolated and dependent on his supervision, which has succeeded, given that he has not reoffended, but considered that it posed a dependency risk in the longer term. She thus considered that a time limited step down process was required in his case, rather than any abrupt cessation of supervision;

10. discussed proposed reporting and monitoring obligations, including electronic monitoring, access to the internet, access to pornographic material and non-association with children conditions, which she considered were required to make WXN1’s supervision order effective; and

11. considered that WXN1should be encouraged to socialise and was competent to work and study and that review of some of the conditions by a treating psychiatrist could be beneficial.

2. Dr Furst has assessed WXN1 in 2014, 2020 and 2023. In his report he explained the information he had to consider about WXN1’s relevant history and:

1. observed that WXN1 had disclosed that he still had thoughts/fantasies of a sexual nature involving children, although not to the same intensity and frequency as 10 to 15 years ago and that he considered that he now had more control than he had in the past, he believed because of the medication he was continuing to take;

2. noted the support WXN1 had received from various sources while under supervision in the community and the care he was receiving from a psychiatrist;

3. explained WXN1’s expressed desire to change for the better and his continuing feelings of guilt and shame;

4. explained in detail the numerous past risk assessments by other psychologists, psychiatrists and others who had examined WXN1 and assessed his risks in the past, noting his long history of treatment for a generalised anxiety disorder, depression and paedophilia disorder;

5. noted Dr Nielsen’s 2017 view that WXN1’s re-offending had been surprising, because of his intensive counselling in custody and after release and libido lowering medication completely supressing sexual interest and activity of other offenders taking such medication, that contributing to concern about his future risk of offending and the need for deterrence;

6. explained the high risk of further sexual offending WXN1 was assessed to pose in 2018 and the resulting orders which provided for his intensive supervision and case management, which had regard to the results of assessment tools then utilised to assess his risks;

7. explained the risk factors which WXN1 now posed, which included increased risks if he ceased taking antilibidinal medication, which assisted him in refraining from further offending, but which might also reinforce a belief that he has no internal ability to control his sexual behaviour;

8. discussed the potential effects of the shame WXN1 continues to feel on his mental health and the effectiveness of treatment he receives, he having a history of having experienced domestic violence from a young age, social isolation without normal peer interactions and a sexual preoccupation with children which had developed at a time when he was given unfettered access to young children. He also considered that WXN1’s need to relate to other people was hampered by the extreme level of the shame he continues to feel;

9. agreed that WXN1 met the criteria for paedophilia disorder, as well as a persistent depressive disorder, for which he was continuing to be treated;

10. noted that he had spent most of his late adolescence and adult life in custody and in two periods in which he was in the community had committed further offences, albeit less serious than those he had committed as an adolescent. That was considered to be consistent with the supervision he was then receiving, and it was also noted that there had been no such further offending under his recent orders, where his participation in community based maintenance programs had been satisfactory;

11. noted the 99 individual counselling sessions WXN1 had participated in before March 2023, as well as his completion of the Custody Based Intensive Treatment program and the related maintenance program;

12. explained that as well as his paedophilia disorder and depressive disorder WXN1 also likely meets the criteria for autism spectrum disorder, with his paedophilia disorder being the most significant for his risk of future sexual offending against children;

13. considered that WXN1 required ongoing treatment for that disorder with antilibidinal medication supervised by a psychiatrist, with the expectation of a reduction in sexual deviance and the risk of further offending; that participation in other identified programs might also assist him; and that antidepressant medication might also help manage his ongoing risk of reoffending;

14. explained the reasons for his assessment that WXN1 still poses a well above average risk of reoffending, compared to the average sex offender, using the Static-99R tool, but also explaining the limitations of the use of such tools. He considered that both WXN1’s static and dynamic risks are stable and unlikely to change in the foreseeable future;

15. explained his view that the risk which WXN1 poses cannot be managed in the community without the proposed supervision order, given the enduring nature of his disorder and he having insufficient self-awareness and/or self- control to be trusted to self-manage;

16. considered that the supports which the proposed conditions would provide WXN1 would assist by not leaving him at liberty to stop taking his medication and use the internet in a way that could harm children, such as by accessing child abuse material and frequenting chat rooms to access potential victims; and

17. noted that such conditions had been effective over the past 3 years in preventing WXN1 further offending, explaining his view of the utility of conditions such as scheduling and electronic monitoring in helping to ensure his compliance and prevent further offending, with some conditions being likely to be able to be relaxed over time.

19. There was no issue that the opinions of the experts who have considered the risks which WXN1 poses must be accepted.

20. In the result, having considered all that the evidence established and the parties’ agreement about the conditions which should be imposed to manage the risk of further serious offending which WXN1 undoubtedly continues to pose, I am satisfied that a consideration of the requirements of s 9 and the paramount consideration, the safety of the community, must result in the exercise of the Court’s discretion to make the orders which the parties agreed.

Orders

21. For the reasons given I thus order:

1. Pursuant to ss. 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (“the Act”), the Defendant is subject to an extended supervision order (“the extended supervision order”) for a period of three (3) years from the date of the order.

2. Pursuant to s. 11 of the Act, the Defendant is directed, for the period of the extended supervision order, to comply with the conditions set out in Schedule to this Order.

WXN1 Schedule of Conditions 5 October 2023 (140569, pdf)

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Amendments

09 October 2023 - Paragraph 10 pseudonym adopted for name of defendant.

Decision last updated: 09 October 2023